Education and Special Needs

“Education problems supply one of the litigation battlefields of the modern Republic. All the protagonists – the State, the churches, the teachers and their unions, the local community, the parents, the children too – have individual interests they wish to see upheld.

… in seeking to uphold the interests of one set of protagonists, it is commonly impossible to do otherwise than to interfere with, and sometimes even substantially downgrade, the interests of one, if not more, of the other sets.”

(Niall Osborough writing in the Irish Jurist, 2000)

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A very complex right

We often talk about the right to education, but many people do not really understand the true nature of that right. In addition, not only is education a right in itself, but it is also a prerequisite for the exercise of many other fundamental rights. An obvious example is the right to vote. If one cannot read, how can you understand the manifestos of the different candidates, and perhaps even the ballot paper?

The famous American revolutionary, and subsequent President, Thomas Jefferson, recognized that a well-educated population is a prerequisite for democracy: “An educated citizenry is a vital requisite for our survival as a free people”.

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As a general rule, constitutional rights can be grouped into three main categories: 1. Civil/Political Rights; 2. Economic/Social/Cultural Rights; and 3. Group Rights.

Education is a combination of all three! This is why it is such a complex right, as it can mean different things for different people in different circumstances, or even different things for the same people in different circumstances.

It is also unique in that it is a “compulsory right”. In other words, even though we have the right to be educated, in fact we do not really choose whether we want to exercise that right or not, as the law tells us that we have to go to school until we reach a certain age, whether we want to go or not.

But this multi-faceted nature of the right also means it is quite difficult to enforce.

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The Separation of Powers

A democratic system of government generally has three branches: the legislature (Oireachtas or parliament), who make the law. The executive (the cabinet of ministers, headed by the Taoiseach or prime minister), who enforce the law. And finally, the judiciary (the courts), who interpret the law.

These three branches of government act as a counterbalance to each other and watch each other carefully to make sure that nobody oversteps the boundaries of their particular task. So if a minister tries to make law, he or she can be stopped as acting in excess of their powers. If the legislature makes a law that contravenes the Constitution, the courts can declare that law unlawful. The People influence the process by electing the politicians to make up the legislature, and by the same token, they can remove those members of parliament at the next election if they are not satisfied with their performance. As members of the executive must first be voted into the legislature, the People indirectly control their composition as well.

And here lies the challenge. Unlike other personal rights (privacy, dignity, etc.), education is also a socio-economic right. It is often a challenge for a court to interpret this right without telling the executive (the Minister of Education) how to do his job. For example, the court can hold that a person has the right to an education, but they cannot tell the school what should be taught to that child. The first part is an interpretation of the law, but the second part (the curriculum) is the job of the executive, and the court is not allowed to interfere.

In other words if the citizens are not happy with the national curriculum, or how the Department of Education decides on that curriculum, they cannot complain to the court, as the court’s hands are tied. Their only remedy is the ballot box – they can vote the Minister out at the next election.

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The Right to Education in Ireland

The right to education is contained in Article 42 of the Irish Constitution, Bunreacht na hÉireann:

Article 42:

1 The State acknowledges that the primary and natural educator of the child is the Family and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children.

2Parents shall be free to provide this education in their homes or in private schools or in schools recognised or established by the State.

3.1° The State shall not oblige parents in violation of their conscience and lawful preference to send their children to schools established by the State, or to any particular type of school designated by the State.

3.2° The State shall, however, as guardian of the common good, require in view of actual conditions that the children receive a certain minimum education, moral, intellectual and social.

4 The State shall provide for free primary education and shall endeavour to supplement and give reasonable aid to private and corporate educational initiative, and, when the public good requires it, provide other educational facilities or institutions with due regard, however, for the rights of parents, especially in the matter of religious and moral formation.

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When reading the Article, the first thing that strikes you is that it is not so much about the right of children to be educated, it is about the right of parents to educate their children as they see fit. Some argue that this emphasis on protecting parental rights and limiting State interference overshadows the rights of the person who should benefit the most, the child. But that is an argument for another day.

The other criticism of the Article is that this freedom to educate your child or send them to a school of your choosing is more apparent than real. The vast majority of schools in Ireland are denominational, with the vast majority of those being Roman Catholic.

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The Interpretation of Article 42

In recognition of the substantial number of competing rights and conflicting interests, the Court has consistently interpreted Article 42, when possible, so as to be in harmony with the other applicable provisions of the Constitution.

When this approach is impossible, the Court will be forced to give precedence of one right over the other – a ‘priority of rights’.

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Crowley vs Ireland [1980] IR 102

The basic facts of the Crowley case are as follows: Due to a teacher strike, the Department of Education provided buses to take affected pupils to other schools which were not affected by the strike. The High Court held that the teachers’ refusal to teach children contravened the children’s constitutional right to free primary education. The Supreme Court overruled this finding and and said the State had fulfilled its constitutional obligations by bussing children to other schools.

The Supreme Court pointed out that the duty laid upon the State by Article 42.4 was not to ‘provide’, but to ‘provide for’ free primary education. The State had a constitutional duty to facilitate education, whilst the church(es) actually provided it. In other words, the Constitution endorsed the existing system of denominationally controlled primary school management.

Kenny J noted that:

‘the enormous power which the control of education gives was denied to the State; there was interposed between the State and the child the manager or the committee or board of management.’

Again, the emphasis was on limiting State intervention and protecting parental autonomy.

There was a positive that emerged from the case. The Supreme Court confirmed that the duty of the State to provide for free primary education conferred a corresponding right on children to receive such an education. This was important as it diluted the overall emphasis on parental rights over the education of their children, and introduced the notion of the rights of the children themselves.

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What do we mean by the word ‘Education’?

In a series of decisions, the Supreme Court has refined the meaning of “education” in Article 42.

Ryan vs AG [1965] IR 294 (S.C.) (the fluoride in the drinking water case) :

‘Education essentially is the teaching and training of a child to make the best possible use of his inherent and potential capacities, physical, mental and moral.’

O’Donoghue vs Minister of Health [1996] 2 IR 20 (a pupil with special needs):

The duty of the State to provide for free primary education includes a right to an education which meets the needs of those with even the most limited capacities.

“…this involves giving each child such advice, instruction and teaching as will enable him or her to make the best possible use of his or her inherent and potential capacities, physical, mental and moral, however limited these capacities may be … .”

Perhaps the most famous (or infamous, depending on your viewpoint) judgment about education is Sinnott vs Minister of Education [2001] 2 IR 545.

The facts of this case can be very briefly summarized as follows: Jamie Sinnott had profound autism. At the time of the court action, he was 23 years old. The Department of Education had promised to provide additional specialised tuition for Jamie. At the time of the court action, he had received very limited tuition of a largely repetitive nature, and had shown no progress. In fact, he had regressed from the levels he had attained whilst in America.

The plaintiff (Jamie’s mum) argued that the State had failed to provide Jamie with free primary education as provided for in Article 42. The plaintiff argued that the State should provide Jamie with this education for as long as he needed it. In essence the Plaintiff was relying on Jamie’s intellectual age, even though he was older than 18 and therefore technically an adult.

In true Departmental style, the government argued that Jamie did not have autism, he had “a profound mental and physical handicap with some autistic features”. The State argued that Jamie’s right to free primary education ceased when he turned 18, i.e. when he was no longer a child. In other words, the State was relying on Jamie’s chronological age, rather than his intellectual age.

Much attention and argument was focused on the meaning of specific words and phrases:

‘child’ vs. ‘adult’

‘primary education’

‘education’

The Supreme Court held that because the Constitution does not have a definition (Interpretation) section, all words in the Constitution had to be given their ordinary everyday meaning. The court held that the ordinary meaning of the word “child” was a person under the age of 18, whilst an adult was a person over 18. Only a ‘child’ is entitled to free primary education (reading, writing and arithmetic) under the Constitution. Accordingly, a citizen loses the right to free primary education on their 18th birthday.

However, the Supreme Court continued to say that a citizen still has the right to education (in the broad sense, as opposed to primary education) that is necessary to enjoy your rights as a citizen. If a citizen, on becoming an adult, needs continuing education to ensure his/her personal rights under the Constitution (e.g. dignity, bodily integrity) the State must provide those educational facilities (although not necessarily for free).

Therefore, the State’s duties to a citizen regarding education do not end when that citizen turns 18. Rather the State’s duties change. The duty changes from providing free primary education to providing the facilities for further education (in the broad sense).

The minority judgment of the Chief Justice was remarkable for its foresight and compassion. He argued that the rules and stages of development (6, 12, 18, 21 yrs) were designed for developmentally appropriate citizens, not for those with intellectual disabilities. He argued that it is wrong to apply the same rules to people with disabilities.

And this is exactly the argument that can be raised against the approach of the Supreme Court. The age of 18 has absolutely no meaning or significance to somebody with an intellectual disability, so how can this arbitrary age be applied to that person in determining that his or her right to free education ends then?

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On the other hand, this “for as long as you need it” approach raises the ‘floodgates’ argument:

If the Supreme Court had held that the State had a duty to provide free primary care to a citizen with an intellectual disability ‘for as long as he/she needs it’, this could mean that the State would have to provide free education to that person for the rest of their natural life. This would place enormous demands on the education budget and might result in mainstream students losing out, as all the resources would be needed for special needs education.

It is a tricky issue and essentially comes back to resources. Despite promises and speeches by various politicians before an election, the legislature will never pass a law which establishes education as an absolute right. That ‘right’ will always be linked to the availability of resources. As it is the executive who decides the allocation and use of national resources, the courts are not allowed to interfere.

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Further Reading:

https://www.itsyourright.ie/education/

https://www.ourvoiceourrights.ie/blog/2015/05/22/is-ireland-ensuring-the-right-to-education-for-all/

Categories Education, Mental Health Law

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